Open-Government Issues High on State Legislature’s Agenda

ByTRACY WOOD |January 5, 2014

In June, California voters will have the opportunity to amend the state constitution so local governments will be required to bear the costs of making their meetings and records open to the public.

The ballot proposal is the most prominent of issues that will be debated this year involving the public’s right to know what its government is doing. Another, which will go before the Legislature, is the issue of ensuring that local boards and commissions give members of the public a genuine chance to speak on agenda items that are up for a vote.

Open-government experts are concerned that the right of the public to address local government bodies is being eroded by rules that confine their comments to the beginnings or ends of meetings and by time limits that are too restrictive.

The proposed law governing public comment has particular significance in Orange County, where controversial public speaking issues have flared in the last two years in both Anaheim and before the Board of Supervisors.

Unfunded Mandates

The 61-year-old Ralph M. Brown Act mandates open meetings, and the 46-year-old California Public Records Act covers government records.

But beginning in 2005 during the administration of former Gov. Arnold Schwarzenegger, Sacramento lawmakers stopped putting the roughly $15 million to $17 million a year into the state budget to reimburse local governments for complying with the Brown Act. The balance owed by the state continued to build year by year to the approximately $111.5 it stands at now.

State officials are developing separate reimbursement estimates for the Public Records Act, but an initial projection was about $20 million for this year.

In 2010, Gov. Jerry Brown took the state reimbursement mandate out of the budget, meaning Sacramento wasn’t going to pay and local governments could decide for themselves whether to continue following provisions of the open meeting law that required public notice of meeting times, dates and agenda items.

This year, after Brown and legislative leaders tried to suspend the state public records mandate for local governments, lawmakers quickly reversed themselves in the face of statewide objections from open-government advocates and news organizations, who feared cities and counties would stop meeting requirements to comply with the Public Records Act.

And that brought on the proposed constitutional amendment, which is significant because the state’s failure to reimburse government for their open-government costs theoretically gives them the option of not complying with the laws.

The League of California Cities, which represents most city councils in California, was an original sponsor of the Brown Act in 1953 and has urged its members to follow its rules, even without reimbursement.

A league spokeswoman said the association’s members haven’t had time yet to adopt a formal position on the June proposed constitutional amendment, including whether cities should absorb the staff costs of compiling public records for review.

The costs to local governments are for staff time to create a full agenda and publicly post it 72 hours before each meeting. Except in emergencies, last-minute changes to agendas are banned under the Brown Act, and the public must be given the opportunity to speak at meetings.

Other staff costs include items such as training new board members how to abide by the open-meeting law and making announcements during meetings of official actions taken by the board.

Orange County estimates it costs about $90,000 a year in staff time to adhere to the Brown Act. The separate costs for other county boards and commissions is about $45,000 annually, according to estimates compiled by the county.

Statewide reimbursement criteria for the Public Records Act are being developed, even though the issue could be moot if voters approve the constitutional amendment in June.

If voters reject the constitutional amendment, however, reimbursable costs would include staff time used to compile records within 10 days of a request; emailing a request for a time extension, if necessary; sending out a notice saying a request is denied if the records aren’t public and, as required by law, helping the public find relevant records.

A Boost for Transparency

Before the Brown Act, local agencies often didn’t tell the public where and when they were meeting or held special meetings in secret. And in the days before the Public Records Act, some local boards and commissions flatly refused to let taxpayers see documents that shed light on who was making decisions and why.

Even today, news organizations and members of the public may have to go to court to force county supervisors or city councils to open records.

But last month the state Supreme Court gave a big boost to the entire concept of government transparency by ruling unanimously that the State Bar of California, which certifies all state lawyers, has a common law responsibility to provide information, even though it isn’t specifically covered by the state’s Public Records Act.

“This right is not limited to records of official actions or records in court cases, but extends to any government records whose ‘disclosure would contribute significantly to public understanding of government activities,’ ” according to the decision, said Peter Scheer, executive director of the First Amendment Coalition, which assisted with the lawsuit against the state bar.

Battles Over Public Comment

Open government advocate Terry Francke, general counsel to Californians Aware, predicted the Legislature also will be asked to protect the public’s right to speak during public meetings.

“I often hear public officials say that gatherings subject to the Brown Act are not ‘public meetings’ but rather ‘business meetings’ that the public is allowed to observe,” said Francke. “That grudging interpretation may be true in some states, but in California the people’s rights to attend meetings of government bodies and specifically to ‘instruct their representatives’ are both constitutionally based and further conjoined in statute.”

Francke said tactics used in some jurisdictions to discourage public participation include requiring members of the public to speak at the beginning of a meeting before agenda items actually are being considered; forcing the public to wait until the very end of a meeting to hear “general comments”; and misusing “speaker cards” to require members of the public to list which way they stand on an issue and details about what they plan to say.

In the past two years, Orange County agencies have wrestled with public comment issues. In 2012, the county Board of Supervisors, claiming habitual speakers were taking up too much time, adopted a policy that limits individual public speakers to a total of nine minutes each during an entire meeting.

Last year, Newport Beach and Garden Grove considered reducing the amount of time a member of the public could speak from five minutes to three minutes. Newport Beach adopted its proposal while Garden Grove postponed its decision.

And county leaders wound up holding a roundtable discussion of how to handle disruptive speakers in general after William Fitzgerald, a frequent speaker at Anaheim City Council meetings, launched an anti-Semitic and homophobic verbal attack on Councilman Jordan Brandman during an October council meeting.

The issue became more inflamed when Anaheim Mayor Tom Tait’s adversaries on the city council made it part of political attacks against Tate.

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